The Judiciary

The constitution provides for the Constitutional Court; the Supreme
Court of Justice and the Supreme Administrative Court, both of which
have subordinate courts; and a variety of special courts, including a
military court system. It states that the courts are the "organs of
supreme authority competent to administer justice in the name of the
people." The courts are also designated as "independent and
subject only to the law."

The Constitutional Court, called into existence by the constitutional
reform of 1982, judges whether legislative acts are legal and
constitutional. Among other duties, this court also ascertains the
physical ability of the president to carry out presidential functions
and to examine international agreements for their constitutionality. Ten
of its thirteen members are chosen by the Assembly of the Republic.

The Supreme Court of Justice is designated the "highest court of
law," but "without prejudice to the jurisdiction of the
Constitutional Court," and heads the court system that deals with
civil and criminal cases. The courts of first instance (the first courts
to try a case) are the municipal and district courts; the courts of
second instance are, as a rule, courts of appeal. As of the early 1990s,
there were four of these latter courts. The Supreme Court of Justice may
serve as a court of first instance in some cases and as an appeals court
in others.

The Supreme Court of Administration examines the fiscal and
administrative conduct of government institutions. It is not concerned
with the state's political decisions or legislation. One section of this
court deals with administrative disputes; below it are three courts of
first instance. Another section deals with tax disputes and is supported
by courts of first and second instance. In addition to these courts,
there is a Court of Audit situated in the Ministry of Finance.

Overseeing the nominations, training, promotions, transfers, and
professional conduct of Portugal's judges are the Higher Council of the
Bench and the Superior Council of the Administrative and Fiscal Courts.
These bodies have the right to discipline judges whose conduct does not
comply with the law. Also looking after the rights of the citizens is
the ombudsman, elected by the Assembly of the Republic for a four-year
term. In the early 1990s, this official received some 3,000 complaints a
year from Portuguese who felt they had been improperly dealt with by
state institutions.

The Portuguese legal and judicial system was based on Roman civil law
and was heavily influenced by the French system. It differed from the
United States or British legal systems in that a complete body of law
was found in the codes. As a result, judicial reasoning was deductive,
and prior cases or precedent played little role. A judge was therefore
seen mainly as a civil servant whose role was to discover and apply the
appropriate law from the codes, not to interpret it or to apply new
sociological findings. Hence, judges enjoyed less prestige than in a
system based on common law. In addition, law was seen as more fixed and
immutable than in the United States, although over time it did change.
The historically authoritarian nature of Portugal's system of government
was often attributed to this centralized and hierarchical legal system.

Portugal's legal system was considered relatively fair and impartial.
During the Salazar regime, the courts were loyal servants of the New
State, and high officials of the regime were all but immune from
judicial proceedings. After the Revolution of 1974, Salazar-appointed
judges were largely removed in favor of revolutionary ones, and certain
groups--such as workers and peasants--were often favored over owners and
employers before the law. With time, however, the courts came to
function with greater impartiality. Most criticism centered on the fact
that the courts were slow and overburdened. Long periods of time were
often required for the legal system to deal with even routine matters,
nor did the courts adequately keep pace with new judicial issues, such
as drugs and white-collar crime.